HomeMy WebLinkAbout1996-12-09 97-51 ORDERCOUNCIL ACTION
Date: December 9 1996 Item No. 97-51
Item/Subject: Amending Tentative Develeperand Option Agreement for Purchase ofa
Portion of Ne Former Frewc's Building-Northem Conservatory of Music
Responsible Department: Legal E Community and Economic Development
commentary:
A copy of the Tentative Developer and Option Agreement with the Northern
Conservatory, of music, with revisions to the prior Agreement proposed by the
Conservatory and City Solicitor indicated, is being provided separately. The
revised Agreement would extend the Tentative Developer status to the Conservatory
to June 30, 1997, at which time the Conservatory and City would be required to make
"go / no -90" decision on the project. It would extend to June 30, 1997 the time
by which the Developer- is required to submit a fund raising plan, business plan,
an identification of impediments to development, and an engineering analysis of the
ability of the building to support the proposed development. If a decision i
ached by the City and Conservatory by June 30, 1997 that the project will
proceed, the Option element of the Agreement would go into effect. The Option
would have an initial term ending June 30, 1998, with two possible one year
extensions. Construction would have to coo later than November 15, 1999
and be completed prior to June 30, 2000. Medatesby which required Submittals
to the City, including preliminary plans, final plans, and a construction schedule
must be submitted for approval, have been extended one year (see attached Proposed
Date Changes).
The revised Agreement would provide the Conservatory with $20,000 of City
funds upon execution of the Agreement, and up to $145,000 in allowable costs o
requisition by the Conservatory after execution of the Agreement (see section In
e
Paragraph 5 on page 3 of the Agreement). The prior Agreement required a $100,000
donation by the Developer , as start up capital for the capital campaign for the
School for the Arts. This would be changed to read "pledge- $100,000 (Section I,
paragraph F on page 3). The revised Agreement would replace the previous Agreement
dated 1/0/96 which expired on 11/30/96. Z�
D rt ma tJbad
Manager's Comente:��/�/ y
City Manager
Associated Information:6,,,AJn I.,..nn.u1 OM dyr(/a
L
RUgst Approval: „'G
Finance Director
Legal Approval: /yy /�+y�,'
"1/' IYAM�u
City Solicitor
Introduced For 0 First Reading 0 Referral Page�of�
9]-51
Assipmd to Counegw Sovcy December 9, 1996
CITY OF BANGOR
(TITLE.) (@ri1Pr, _ AmeMrng Tentative Developer and Option Agreement for Purchase ofa
Portion of the Former Freese's Building -Northern Conservatory of Music
BY the IXtg Coxino, of City of Bangor:
ORDERED,
THAT
WHEREAS, the City of Bangor and Northem Conservatory of Music executed a Tentative
Developer and Option Agtcement for Purchase of Portion of the Former
Freese's Building on January 8, 1996 that granted the Norberto Conservatory of
Music exclusive tentative developer status to a portion ofthe former Freese's
Building for development of the Maine School for the Aos/INaine High School
for the Arts; and
WHEREAS, the Tentative Developer and Option Agreement for Purchase of a Portion of the
Former Freese's Building dated January, 9, 1996 has expired; and
WHEREAS, Devisions to the Tentative Developer and Option Agreement for Purchase of
Portion of the Former Freese's Building have been proposed by the City of
Bangor and Northem Conservatory of Music;
NOW THEREFORE, BE IT ORDERED BY THE CITY COUNCIL OF THE CITY OF
BANGOR, THAT:
1. The City Manager is hereby authorized to execute a Tentative Developer and
Option Agreement for Purchase of a Portion of the Former Fr«se's Building, a
copy of which is on file in the Office of dam City Clerk; and
2. Said Tentative Developer and Option Agreement for Purchase of a Portion of the
Former Tresse's Building shall supersede and replace the Tentative Developer and
Option Agreement for Purchase of a Portion of the Former Freese's Building
executed by the City of Bangor and Northem Conservatory of Music dated
January 8, 1996.
IN CITY COUNCIL
December 9, 1996
Darryl Rhodes. Fred Cordon,
Steve Gteybert, Pat Jenkins,
Josh Smercbel 6 Mie Rhodes
urged the Council to Amend
this Order before Passage
Motion to Amend
Motion to Pass...., As Amended
Failed - Vote: 5 no, 3 yes -
Councilors voting no: Aube,
Blanchette, Soucy, Sullivan
S Woodcock
councilors voting yea: Baldeccl,
Leen d Tyler
Order Passed Vote: 5 Yea. 3 no
Councilors voting yes: Aube,
Blanchette, Soucy. Sullivan a
Woodcock
Councilors voting no: 9aldacci. Leen
S Tyler
f
CITY CL
9)-51
ORDER
Title, Amevding Tentative Developer
and option Agreement for Purchase of
e portion of the Former Freese's Build
......................................
ivg - NorNexn Covservetoxy of Hus1c
...PG...
Assigned to
. .... ...............
UU Councilman
9)-51
TENTATIVE DEVELOPER AND OPTION AGREEMENT
Northern Conservatory of Music
Proposed Date Changes
Tentative Developer Santa
from
March 31,19%
to
Scale 30,199'1
Responsibilities ofDeveloperto Submit
Gone
June30,1999
to
Jma30,2000
Fwtheising Plan
from
March 31, 1996
b
Jutw30,19W
Business Plan
from
March 31,1996
to
Juve30,1999
Identification of Barriers to Development
from
March 31,1996
to
Jure 30, 1997
Engineering Analysis of Building
f one
Much 31, 1996
to
lune 30,1999
Option to Proceed
from
June 30, 1996
to
Ione 30, 1997
Term of Option
from
June 30,1999
to
June 30,1998
Exteusionof0ptim.
First Extension
from
Judy 1, 1998
to
lune 30,1999
Second Extension
from
July 1, 1999
to
lune 30, 2000
Prelimirary Plans
^
Submittal ofPretlmirary Plans
from
Jure 1, 1998
'm
June 1, 1999
Submittal of Revisions
from
Judy 1, 1998
to
July 1, 1999
Submittal of Applications for All Approvals
from
June 1, 1999
to
Jane 1, 1999
Approval ofAll Plans
from
Any 1, 1998
to
July 1,1999
Final Plans
Submittal of Final Plans
from
July 15,1998
to
July 15,1999
Submittal of Revisions to Final Plans
from
August 15,1998
to
August 15,1999
Submitral ofConstmction Progress Schedule from July 15, 1998 to Judy 15, 1999
Commencement of Construction (latest)
from
Nov. 15,1998
to
Nov. 15,1999
Completion of Construction (latest)
Gone
June30,1999
to
Jma30,2000
Completionof Roof Repairs
Within 90 Days of Agreement
to Proceed
Property inb Compliance with Facade Ord.
From
June 30,1998
to
lutes 30,1999
Reimburse City for any Facade Repairs
From
June 30,1998
to
lune 30,1999
December 4, 1996
TENTATIVE DEVELOPER
AND OPTION AGREEMENT
FOR PURCHASE OF
A PORTION OF THE
FORMER FREESE' S BUILDING
Table of Contents
I. TENTATIVE
DEVELOPER STATUS
. Page 1
of
24
1.
Grant of Tentative D v lnner Status
. . . . . . . . . .
. . Page 1
of
24
2,
Premises .
. . Page 1
of
24
3.
. . Page 2
of
24
Ext Is E .
#3.
Re=n a'b'1' f .
. . Page 2
of
24
_
54.
Responsibilities�of rTmy
. Page 2
of
24
65.
Sale to E=TJTTZE�
E,,ese
Associates . . . . . .
. . Page 3
of
24
Y6.
Riaht Qf Ent=. . .
. . Page 4
of
24
By.
tl gal Oo ionVrn yr r d .
. . Page 4
of
24 -
98.
Detemination Not to Prn d . .
. . Page 5
of
24
II. OPTION
. . . . . . . . .
. . Page 5
of
24
- A. fiRANT
OF OPTION . . . . . . . .
. . Page 5
of
24
1.
Grant of Option . .
. . Page 5
of
24
_
2.
PnrCFsae Price of Premises . . .
. . Page 6
of
24 "
3.
TermTerof Opti . . . . . .
. . Page 6
of
24
4.
Extension of Option . . . . . .
. . Page 6
of
24
5.
Exercise of onHon . . . .
. . Page 6
of
24
_ 6.
Riah
. . Page 6
of
24
7.
Evidence of Convey of 1
Page 7
of
24
8.
R4 of TEVELOPERnfeA renran ae-
-_ -
. Page 8
of
24
9.
E.
Proceeds
Freesa H Wildino Associates
Page 8
of
29
H.
OTT
PREMISES
TO THE OFIn`i ➢F . . . . . .
. . Page 8
Of
24
i.
a
iasio o£ also . . . . . .
. . Page 8
of
24
-.. 2.
Annroval of Plane
Anor . . .
. Page 5
of
24 -
- - 3.Amendment
fo Plan=
Page 13
24
9 -
Progress
.
. . . .
. Page 11
of
24
S.
Permit Eeaaire nt .
. Page 11
of
24
- 6.
videnae of financialct A. lira ,
, Page 11
of
24 -
7.
rnr�tx'ant . . . . .
. Page 12
of
24
- S.
oomoleted work n . . . . . . . .
. Page 12
of
24
_ - 9.
Peblic Easement.
Page 13
of
24
C.
_
_ -
T �➢ ➢Vp . . . . . ,
, Page 13
of
24
1.
1.
nee . . . . . . . .
. Page 13
of
24
- 2.
1192 ea=lctYs
IIae. . . . . .
. Page 13
of
24
_ - - 3.
-diaciimion
Anti -direr amination
Page 14
of
24
- 4.
aro erry Taxes/In Lieu of Tax Agreement,
. . . .
. Page 14
of
24 -
_ 5.
g0.di Rest rRestri
Page 15
of
24
6.
Land Speculation
page 15
of
24
7.
a AMration f Transfer Prior
to Complption
Page 15
of
24
8.
-_
. . . . . . . . . . . . . . .
. Page 17
of
24
9. H 9tice of DefailltPage
18
of
24
10. Ytle Hemersion Pr'or to Completion
. Page
19
of
24
11..
. . . Page
21
of
24
12. Certnf' let— .
. . . Page
22
of
24
III, GEL PR=SIONe
. . . Page
22
of
24
LRrior Agreement_Simeree3ed ,
, , , Page
22
of
24
T21. aemerability . . .
. . . Page
22
of
24
i 3- N0t3&€5 . .
. . . Page
23
of
24
Memnran Flom o£ QPtiM . .
. . . Page
23
of
24
�. Auf Fority to Exem�ta
Page
23
of
24
TENTATIVE DEVELOPER AND OPTION AGREEMENT
FOR PURCHASE OF A PORTION OF THE
FORMER FREESE'S BUILDING
THIS AGREEMENT is made and executed in duplicate this day
of 1996, by and between the CITY OF BANGOR, a municipal
corporation located in the County of Penobscot, State of Maine
(hereinafter ".CITY"), and NORTHERN CONSERVATORY OF MUSIC (hereinafter
"DEVELOPER')., a nonprofit corporation, having a principal place of
business in Bangor, County of Penobscot, State of Maine.
W I T N E S S E T N:
WHEREAS, the CITY has received the DEVELOPER'S proposal for the
redevelopment of a portion of the real property known as the former
Freese's building, located at 74-96 Main StreetinBangor (hereinafter
"The Premises',); and
WHEREAS, the CITY has determined that the private development of the
Premises in accordance with the provisions of this Agreement would best
serve the interests of the citizens of the CITY; and
WHEREAS, the CITY has determined that the DEVEIOPER's proposal will
serve the interests of the citizens of Bangor;
NOW, THEREFORE, in consideration of the mutual conditions and
covenants contained herein, the parties agree as follows:
I. TENTATIVE DEVELOPER STATUS
1. Grant of Tentative Davelop=_Qtatus. The CITY grants and the
DEVELOPER accepts exclusive tentative developer statue to the
Premises for development the Maine School for the Arts/Maine
High School for the Arts for the period from the date of this
agreement until Match 31, 996 June 10 1997.
2.' The Premises made subject of this Option consists of
aportion of the 'Freese's building" so-called, located at 74-
96 Main Street, Bangor, Penobscot County, Maine, and further
described a "Parcel One" and "Parcel Two" in the deed from
Bangor Maine Associates to Charles Fitzgerald, dated Tune 3,
1985 and recorded in Book 3669, Page 1, Penobscot Registry of
Deeds, being the front o westerly two-thirds, m r less, of
said "Freese's building"r being the remainder of the building
not included in the conceptual plan entitled "Conceptual Floor
Layout - Typical Upper Floor/Freese's Building Renovations/
Realty Resources Chartered", prepared by Curtis Walter Stewart
.. Architects of Portland, Plaine, dated 10-12-94, a copy of which
is attached hereto as Attachment "A". A full legal description
of the Premises shall be supplied by the City in accordance
Page I of 24
with the City's title obligations under Paragraph II.A.p of
this Agreement.
this Agreement, pon BEuRt5PER-s t,
not to exceed three (3) months if the sale of th.
Chartered does riot close yx I
lox to daduaTy 1, 1996.
43. Responsibilities Of During the period in which the
DEVELOPER has been granted tentative developer status, a
outlined in paragraphs I.1 and I.3 above, the DEVELOPER shall,'
o later than «nee o i s , submit to the CITY
the following:
a. a fundraising plan detailing how DEVELOPER will raise
funds for its redevelopment of the Premises including
DEVELOPER's overall fundraising strategy and the general
sources from which funds will be sought.
b. a business plan for the Maine School for the Arte/Maine
High School for the Arts including,. but not limited to, a
marketing plan, estimate of student enrollment, tuition
rates, r sources, staff and other operating costs
and expenses, overall operating proforma.
C. identification of all barriers, contingencies and other
considerations which DEVELOPER knows or anticipates may
hinder or interfere with the completion of the development
Of the Premises.
d. an engineering analysis of the Premises undertaken by a
firm acceptable to the CITY which shall determine the
suitability of the Premises for DEVEWPER's contemplated
the presence of any structural defects which must be
addressed inorder to stabilize the Premises o which pose
significant barriers to its redevelopment, a survey of the
condition of Premises roof including plans and estimates
for immediate roof repairs, and a preliminary cost
estimate for returning the major structural elements of
the building to useable condition based on CITY's existing
construction codes. It is understood that developer will
be working in phases and the engineering analysis need not
provide detailed cost estimates for the initial phase of
development.
Sn, c neibilit:e £- During the period in which the CITY
has granted DEVEpPER tentative developer status, the CITY
will:
a. undertake a good faith effort to clear the title of the
premises from any encumbrances which would restrict the
CITY's ability to transfer the building to new ownership.
Page 2 of 24
b, to cooperate ----
With
Freesp Building Associates Limited Partnership in its
redeveln ent of the r h' d of the "Freese's building,
for housing purposes. n
C. undertake the necessary short-term steps to secure,
protect, and insure the premises as solely determined by
CITY.
d. to work with the DEVELOPER towards the completion of a
partnership agreement for the development of the Maine
School for the Arts/the Maine High School for the Arts.
e. to negotiate in good faith with Realty Resort... pige
Buildina Associates Limited Rartnershipto provide for
ingress and egress to Premises from the Pickering Square
area by means of a common easement through the rear third
of the 'Freese's Building."DEVELOPER understands that
any costs associated with the construction of such ingress
and egress shall be the responsibility of DEVELOPER and
shall be paid to Realty -Resent...ea suildina
- d at such time as Phase I of
DEVELOPER'S project is completed.
65. nuildin
Associates. in the erent the Thi CITY to has been successful
in selling a-porrtion the rear third of the building to Realty
Resources
the proceeds of that sa±e wili be bete and mva ... sly used fnt
Gross
proceeds are anticpated-to be $250100. DEVeLOPER is to
receive $165,000 of gross sale proceeds. S64,350 is to he made
=daMelopment and improvements of the premises The balance of
- 5100.650 is to be used en3y for expenses directly related to
the physical redevelopment and improvement of the Premises and
for other such expenses directly related to establishing the
Maine School for the Arts/the Maine High School for the Arts.
1 of
amailable the closing City's sale of the property to
Freese Buildint Associate.% The remaining
halance ($145,000)
and t
iDEMEWPER
pursuant to thi
DEVELOPER shall maintain adequate records of any expenditure of
said proceeds and shall make such records available to the CITY
at the CITY's request. In the event the DEVELOPER fails to
Page 3 of 24
.... take substantial steps toward rehabilitation and redevelopment
of the Premises in accordance with this agreement for any
season or in the event the Premises shall revert back to the
CITY, any funds not expended by DEVELOPER for the purposes
specified in this paragraph shall be returned —to retained�
the City.
CITY shall retain thrircy—fc Mpvaizazt39t} $85,Ooo of the
5250.000 sale proceeds which shall be available to CITY to
defray any necessary expenses associated with the acquisition
of the Freese's building and maintenance of the Premises during
the period for. which tentative developer status has been
,granted to DEVELOPER. The CITY shall maintain separate
accounts detailing any expenditures of these funds which shall
beavailableto DEVELOPER at DEVELOPER's request.
8110a±d UTOss Salta Proceeds be ±eSS than $255,BBO, tile amounts
96. Richt of Rutrv. During the tentative developer period, the
DEVELOPER shall have the right, on reasonable
onable notice to and
consent by the CITY's Code Enforcement0fficer, to enter upon
the premises with persons and necessary equipment for the
preparation of surveys, the structural analysis, feasibility
studies, and construction plans. In addition, during this
period, the DEVELOPER shall have the right to enter upon the
Premises with persons and necessary equipment to erect and
maintain temporary signage on the Premises, provided, however,
that'the location, size, and content of any such sign shall be
subject to the approval of the CITY's City Manager and so long
as said signage is ompliance with the CITY's sign and
historic preservation ordinances. Such entry. shall be at the
DEVELOPER's sole risk and expense, and the DEVELOPER covenants
and agrees to indemnify, defend, and hold the CITY harmless
from any claims for personal injury or property damage suffered
by reason of entry upon the Premises by the DEVELOPER, its
agents or employees, or anyone acting on the DEVELOPER's
behalf, unless such personal injury or propertydamage i
caused by the negligent acts or omissions of the CITY, its
agents, employees, or invitees. For this purpose, DEVELOPER
hereby expressly waives any and all immunity it may have under
Maine's workers Compensation Act in regard to such claims made
or asserted against the CITY. by;DEVELOPER's.. agents, servants
ants or
employees. Prior to any entry hereunder, the DEVELOPER shall
first obtain liability insurance for this purpose in coverage
_amounts satisfactory to CITY with the CITY as an additional
named insured, and shall provide the CITY with written evidence
thereof. - -
87. Mutna] tmyn Subject to. the ability of the CITY
to clear title to the premises and the Completion by DEVELOPER
_ — of the responsibilities outlined in paragraph E.3 above, and at
the expiration of the tentative developer period and any
Page 4 of 24
extension thereto and in no instance later than June 30, 3595
_ I997, the CITY and DEVELOPER will each individually have the
option to proceed, in accordance with the OPTION section of
this Agreement, with the transfer of the Premises to DEVELOPER
for the purpose of establishing the Maine School for the
Arts/Maine High School for the Arts. The parties shall
individually reach their decision based upon the results of the
structural analysis of the building, construction cost
estimates, and their analysis of the feasibility of the project
and the DEVELOPER's fund raising and business plans. In order
to proceed, both parties must agree.
Should a decision be made to proceed, the DEVELOPER shall
donate pledgg $100,000, or assets of equal value, as start up
capital )xlr the capital campaign for the Maine School for the
Arte/Maine High School for the Arta. In addition, DEVELOPER
agrees to place the first $165,000 in capital campaign
donations into a e
escrow account to be available for use by the
CITY�",mxzed by CITY in
tile acqa±0±tion of tile Ptemises through eminent 11nmain
rmvceedtngs to offset any con�g incurred by the CITY in its
Pf forte t.+ 11— H 1- to the premises.
DEVELOPER shall
provide evidence of such donationand escrow account in a form
acceptable to CITY•s Solicitor. It is understood that any
significant capital campaign donation which cannot be obtained
unless specifically allocated for a particular use incompatible
with the purpose of this escrow account will be excluded from
contribution to the escrow account.
98. Determination Hot to Proceed. Should either party to this
Agreement determine not to proceed with the =development
project as outlined above, any unobligated proceeds held by
DEVELOPER from the sale of a portion of the Premises to Realty
Resources Freese Building Associates Limited Partnership,
Chartered as
outlined in paragraph i.5 above shall be =status
to retained bv the CITY withinz tea (16) days of the decision
not -to -proceed— The DEVELOPER further agrees to provide such
other funds as may be necessary to insure that CITY i
rei bu semene
r imbureedc ins the m unt of O..e Handles
Righty Thousand Dollars ($466,600) (580.000).
1. Grant of Cmtron. In the event that both CITY and DEVELOPER
agree to proceed with the redevelopment project as outlined in
paragraph I.7 above, the CITY grants and the DEVELOPER accepts
an exclusive option to purchase the Premises for development of
the Maine School for the Arts/Maine High :School for the Arts,
at a minimum DEVELOPER cost, which may include surveys,
Page 5 of 24
demolition, site work, building improvements, interior fi-s fi.Il
up, purchase and installation of fixed equipment, architectural
fees, engineering fees, legal fees, financing fees and
preopening expenses of not less than Two Million Dollars
($2,000,000). Said development shall be in accordance with the
terms and conditions set forth below. The effective date of
this Option shall be the date on which both parties to this
Agreement have agreed to proceed.
2. Purchase Prire of Premises. The purchase price of the Premises
shall be $1.00, said amount to be paid to the CITY in cash or
by check at the time of closing on the sale of the Premises.
3. Tenn or Options. This Option shall remain
n effect from the
date a mutual decision i made to proceed in accordance with
.paragraph 1.7 above until June 30, 4997 1998.
4.- Extension of Option. The CITY Council may extend this Option,
upon the DEVELOPER's written request, for up to two additional
one-year periods upon a finding by the City Council that
DEVELOPER has complied with all terms and conditions of this
Agreement and is making reasonable progress toward the
redevelopment of the Premises and the establishment of the
Maine school for the Arts/Maine High School for the Arte.
DEVELOPER and CITY shall meet on at least an
annual basis prior
to the expiration of the original term of the Option or any
extension thereto to review progress toward premises
redevelopment and establishing said schools. Such extensions
shall not be unreasonably withheld.
S. ne OoS—. To exercise its right to purchase the
Premises, the DEVELOPER shall so notify the CITY in writing
thirty (30) days before the expiration of DEVELOPER's Option o
any extension thereof. Provided, that no notice of DEVELOPER's
intent to exercise the option granted here shall be effective
so as to require the CITY to deliver title to the Premises to
the DEVELOPER unless the DEVELOPER has first fully complied
with all conditions precedent to the CITY's conveyance of the
.Premises-to'the DEVELOPER as set out in Section II.E of this
Agreement, below.
Page 6 of 24
All such structural repairs and environmental hazard abatement
work shall be done in a manner that causes the least possible
disturbance to the Premises.The DEVELOPER covenants and
agrees that any work done pursuant to DEVEI,OPER'S entry under
this paragraph shall be done in a workmanlike manner and that
the DEVELOPER shall repair any damage to the Premises resulting
from the exercise of these rights.
7. Evidence of Within thirty (30) days, o
such other time as the parties may agree, of the CITY'S receipt
of the DEVELOPER's notice under Section TT.k.1 I;.B,.@ above,
the CITY shall convey good and marketable title to the
Premises, free and clear of all liens and encumbrances, except
easements for existing roads and utilities of record, to the
DEVELOPER by Municipal Quitclaim Deed, subject however to the
conditions, restrictions, and covenants contained in Sections
II.B and II.0 below. Within one hundred twenty days (1207 of
'the effective date of this Agreement, or such other time as the
parties may agree, the CITY will furnish to the DEVELOPER
evidence of its title in the form of an abstract of title
prepared in accordance with the Maine Title Standards, or a
title insurance commitment issued by a title insurance company
licensed to do business in the State of Maine, that it will
issue a title insurance policy insuring marketable title, free
-_ and clear of all liens and encumbrances, except as set forth
- above. Said commitment shall be in an amount not less than Two
the DEVEL.OPER's
estimated costs of the improvements contemplated by this
_ Agreement. If the CITY is unable to tender marketable title
_ after reasonable efforts to do so, the DEVELOPER may choose to
- accept the CITY's Municipal Quitclaim Deed, in which case the
DEVELOPER Shall assume any risks associated with the title.
The parties mutually acknowledge that the CITY derives its
title to the Premises from the statutory foreclosure of
Page 7 of 24
'municipal tax liens for City of Bangor 'fiscal-year 1993, said
.,foreclosure havingoccurred b
y operation yof iAg t on or abouit
- December e, under- For purposes of atasfyldg the ffic a title
obligations under this -"'
ga paragraph, it shall tie sufficient
showing of title if a title search io or title d ante policy
"- shows fee simple title in t7, 1994, owner of record, Charles
Fitzgerald, a at date, an vif a c, rt of comp all mortgages of
" record a of that date, and if a court of competent _..
jurisdiction shallhave entered its final decree in favor of
the CITY and against
st Charles Fitzgerald and f themortgage
CITY'S
holders of record, confirming the validity of the CITY'S tax
_ Eorecloeure.e
Within thirty (30) days of the date of fhzs-0ptivrs-Ag reamend
r such other
time as the parties may agree, the CITY shall also provide a
legal description of the Premises by metes and bounds, as
provided in paragraph tHr.2 1,2 above.
DEVELOPBR's
acceptance of the CITY's Municipal Quitclaim Deed conveying
title to the Premises, tendered in accordance with Section
II.A.Y above, shall relieve the CITY of any and all further
obligation to supply evidence of title or to take other steps
to perfect the title delivered. In no event shall the CITY's
obligations to tender marketable title, and to use
reasonable
efforts to determine the source of title, extendbeyond the
term of this Option and any duly executed extension thereof as
set forth in Sections II.A.4 and II.A.S above. Provided,
however, that City shall cooperate with DEVELOPER to cure any
title defects discovered subsequent to the conveyance.
9.
Remainin,t Procaeft of Sale to Ortega Buildina
Associates. Upon transfer of title to DEVELOPER, CITY shall
provide to DEVELOPER the remaining balance, if any, of the'
proceeds retained by CITY from the sale of a portion of the
'Freese'sbuilding" to Realty-Reevmcen--fmmitad + eIz_ se
'BUilding Associates Limited Eartnership. The use of these
proceeds by DEVELOPER shall be limited in ordance with the
requirements of paragraph I.5 above including the record
keeping requirementa as outlined therein:-
- B. T TO THE CITY E OF T86 PR
TO THE DEVELOPER
Before the CITY'S conveyance of the Premises, the DEVELOPER
shall complete the following:
-� 1. 5ubmiaaiov of Plan=. The DEVELOPER shall submitpreliminary
and final plana for Phase 1 of the redevelopment of the
'Premises for review and approval by the CITY. Phase 1 shall
Page 8.of 24
include ata minimum, exterior redesign and interior
renovations of the first and second floors of the Premises.
DEVELOPER's plans submitted in accordance with this paragraph
shall in all respects comply with all applicable Codes and
Ordinances of the City of Bangor, and in particular with the
_ requirements of the CITY's Land Development Code and Historic
Preservation ordinance.
Plans shall additionally conform to and be submitted i
accordance with the provisions of paragraph 2 of this Section,
below:
2. Approval of Plans. No construction or renovation will be
allowed without the prior submission andapprovalof
preliminary plans, final plans, and specifications as to Phase
1 of the project. All plans will be submitted to the City
Manager, c/o the Director of Community and Economic
Development. All plans and revisions to plans shall be
viewed by City staff designated by the City Manager after
which the City Manager shall submit the plans along with his
recommendations to the City Council Community and Economic
Development Committee. Said plans shall be reviewed and -
approved by the City Council Community and Economic Development
Committee, No plans shall be approved unless said plans have
been prepared by a duly registered architect, as defined by
Title 32 of the Maine Revised Statutes Annotated, unless
otherwise accepted by the City. The following submissions
shall be required:
a. Preliminary Plans - The intent of the Preliminary Plans
shall be to outline the general scope of development o
redevelopment, and to convey to the CITY sufficient
information to determine the character of the work to be
.. .performed. The Preliminary Plans shall contain:
(1) Site Plan'- The site plan shall be drawn to a scale
of one (1) inch equals twenty (20) feet wherever
practical.The site plan shall otherwise conform to
the requirements of Article 19, Section 4 of the
CITY Is Land Development Code.
(2) Floor Plan - The scale of the floor plan shall be
left to the discretion of the architect. This plan
shall show general room layouts and use, including
_ entrances and exits. Dimensions may be approximate
and the overall floor area for each floor shall be
indicated. The elevation of each floor shall be
indicated.
(3) Elevations - A suitable c ection o elevation of
the building shall be provided, either in the form of
an artist's rendering of the building or a
Page 9 of 24
cross-section of the building. where site grade
plays an important part in the layout of multilevel
structures, the CITY shall reserve the right to
request cutaway elevations showing the relationship
Of floors to surrounding grades. Materials to be
used for exterior treatment shall be indicated.
b. Final Plan and .eperi_ ficati_ . After approval of the
preliminary plans, the DEVELOPER shall then proceed with
the preparation of final plans and specifications. Said
plane and specifications shall show sufficient details
necessary to
insure proper construction. All - dimensions
and elevations shall be accurate and all materials to be
used in the structural o architectural treatment of the
facility shall be outlinein complete detail. If, in the
opinion of the CITY, there is a doubt regarding the
structural adequacy of any facility, the DEVELOPER shall
provide all required back-up data, including structural
computations, boring logs or material guarantees.
c Timetable for Approval of Prelimjna"/FJya1 Plans No later
than June 1, 1998 1999, the DEVELOPER shall submit to the
CITY's City Manager, 1 are of the CITY's Director of
Community and Economic Development, for approval of
preliminary plans as specified in section II.B.2. above.
If the DEVELOPER proposes revisions, or if the City
Manager or the Director of Community and Economic
Development deem revisions to the preliminary plans
necessary or appropriate, the revisions shall be submitted
to the Community and Economic Development Committee for
its approval not later than July 1, 1998 1999..The
DEVELOPER is hereby advised that any time the DEVELOPER
proposes res to plans previously approved or
submitted, the revisions should he submitted as
soon s possible to the City Manager, in care of the'
Director of Community and Economic Development, for review
and approval before the DEVEWPER proceeds with the
preparation of final plans and specifications.
Concurrently with submission of preliminary plans, and n
later than June 1, 3990 1929, the DEVELOPER shall submit
complete applications for all plan approvals required by
the City of Bangor (for site plan and subdivision
approval), the Maine Historic Preservation Commission, and
the City of Bangor Historic Preservation Commission. The
DEVELOPER shall take all steps necessary to obtain local
review and approval of site plan, subdivision and historic
Preservation applications no later than July 1, 1598 1999.
No later than July 15, 3998 1999 the DEVELOPER shall meet
with the City Council Community and Economic Development
Committee and submit for its approval final plans and
related drawings, specifications, and documents in the
Page 10 of 24
form specified in Section II.9.2 above. If the City
Council Community and Economic Development Committee deems
revisions to the final plans to be necessary o
appropriate, the plans must be so revised and submitted to
the City Council Community and Economic Development
Committee for its approval no later than August 15, 3998
1292.
3. Amendment to Final Plans. If the DEVELOPER desires to make any
substantial alterations in the final plans after their approval
bythe City Council Community and Economic Development
Committee, the DEVELOPER shall submit the proposed change in
writing to the City Council Community and Economic Development
Committee for its approval. If the final plans,as modified by
the proposed change, still conform to the requirements Of
Section II.B.1. hereof, the City Council Community and Economic
Development Committee shall not unreasonably withhold approval
of the proposed change. The City Council Community and
Economic Development Committee shall either approve or
disapprove the proposed change within ten (10) days after its
submission and notify the DEVELOPER of its decision. No final
plan approval by the Community and Economic Development
Committee shall override any requirements for City of Bangor
Planning Board and Historic Preservation Commission approval.
9. Constructian Progress Schedule as to Phase 1. Concurrently
with the submission of the final plans, the DEVELOPER shall
submit an anticipated construction progress schedule as to
Phase 1 to the City Council. The progress schedule shall
provide for the commencement of construction within three (3)
months after closing but in no
event later than November 15,
3998 1999 and shall provide forcompletion of construction no
later than June 30, 1999 3440, provided that nothing herein
shall be construed to extend, limit, or otherwise affect the
time limits prescribed in any building permit or Planning Board
approval.
5. Permit Requirement. DEVELOPER shall obtain, and shall provide
satisfactory evidence thereof to the CITY, everypermit,
license, and governmental approval necessary for commencement
and completion of the development described in SectionnIIA.1
above. Except in accordance with Section II.A.4 above, no term
or deadline specified in this Agreement shall be extended by
reason of DEVELOPER's failure to obtain or of an approving
authority to issue any required permit in a timely manner.
Provided, however, that CITY agrees to act in good faith and to
give due consideration to a request by DEVELOPER for such an
extension where the failure to obtain such approval or permit
is due to circumstances beyond the control of DEVELOPER.
6. Evidence of Financial Ability. The DEVELOPER shall provide the
CITY with written, legally binding commitments, in a form
:. satisfactory to the CITY'a city solicitor, from acceptable
Page 1I of 24
lending institutions, governmental agencies, or other sources
showing DEVELOPER's financial ability to support proposed
development coats as required in Section II.A.1 and detailed in
the plans referred to and approved under Sections II.B.1 and
II.B.2 above. The DEVELOPER or DEVELOPER'S general contractor
shall post with said financing entity both a performance bond
and a labor and materials payment bond issued by a corporate
surety licensed to do business in the State of Maine, each in a
penal sum
equal to the total estimated cost of the total -
proposed development, to secure performance of the obligations
set forth in Sections II.B.1, II.B.2., II.B.3 and II.B.4 above.
The DEVELOPER Or the DEVELOPER'S general contractor shall
Submit to the CITY a copy of said bonds and written evidence of
payment of the required premiums. The bonds must remain in
effect until the CITY'S issuance of the Certificate of
Completion under Section II.C.12 below.
>.onairUcHon Cin r The DEVELOPER shall provide the CITY
with a certificateexecutedby the DEVELOPER and its general
contractor, certifying the existence of a contract or contracts
for construction of the total development in accordance with
the provisions of Sections II.B.1, II.B.2, II.B.3 and II.B.4
above.
S. Comolatad Work. The DEVELOPER shall have completed, at a
roof repairs of such nature and quality to insure the
elimination of current water leakage into the. Premises and to
address water infiltration and run-off problems affecting
surrounding properties. Such repairs must be approved i
advance by the CITY. The roof Contractor selected to perform
the work must be approved by the CITY. Repairs must be
completed within ninety days of the date of the mutual
agreement to proceed as outlined in paragraph I.] above. CITY
and DEVELOPER may agree, at the sole option of the CITY, to
undertake a complete roof replacement or repair in lieu of
lesser roof repairs required Of DEVELOPER. Should CITY
exercise this option, it shall make available to DEVELOPER
additional funds over and above those required of DEVELOPER to
meet immediate repair needs, for this purpose. CITY retains
the right to approve the Contractor and plans for complete roof
- replacement or repair. DEVELOPER shall also complete all -
necessary work to bring the facade of the Premises into
compliance with the-CITY's facade ordinance. This work shall
be completed by DEVELOPER no later than June 30,-1998 2944.
Prior to June 30, 1-998 2999, CITY may undertake facade work to
the Premises which it feels is necessary and appropriate.
Prior to undertaking such work, CITY shall consult with
DEVELOPER in an effort to accommodate such work to DEVELOPER'S
overall plan. DEVELOPER will be given the option to perform
such work. Should DEVELOPER be unable to perform this work,
CITY may do so with DEVELOPER to reimburse CITY for such work
o later than June 30, 1998 1999. At a minimum, DEVELOPER'
'- shall invest in these projects and such other physical
Page 12 of 24
redevelopment activities approved by the CITY an amount equal
to at least $185,000, including any reimbursements made to CITY
for CITY performed work.
9. Public Easement. The DEVELOPER agrees to provide for and
constructamPublic access for ingress and egress through the
Premises from Main Street to c nnect to the common easement to
be provided by Realty-xe¢wrces w g� Bui1d' yam=
rA m'eed Partnership through the rear one-third of theso-called
"Freese', Building." The purpose of this easement is to allow
for access through the Freese's Building for occupants and
visitors to the building, as well as the general public, to and
from Maine Street and the Pickering Square area. Such easement
" shall remain open and available to the public during normal
business hours.
Except as otherwise specified herein, the following express
conditions, covenants, and restrictions shall he expressly
incorporated into the CITY's Deed to the DEVELOPER, and shall run
with the land:
1. D d�pvnna_nta. It is intended and agreed, and the Deed shall
SO expressly provide, that the express conditions, covenants,
and restrictions provided in Section II.0 hereof shall be
covenants '-running with the land" and that they shall be
binding, to the fullest extent permitted by law and equity, for
the benefit and in favor of, and enforceable by, the CITY and
any successor in interest to the Premises or any part thereof
for the time periods specifically prescribed herein for each.,
'None of the provisions and remedies below, including the
Reversion specified in Section II.C. 10, shall be c ..trued so
s to limit the DEVELOPER'S liability to the CITY for the
DEVELOPER'S breach of any of its obligations under this Option
Agreement and the Deed.
2. Use F _ i tion. The DEVELOPER agrees for itself, and every
successor in interest to the Premises, or any partthereof, and
the Deed shall contain express covenants on the part of the
DEVELOPER for itself, and its successors and assigns, that the
Premises and any improvements which may be or may become
located thereon shall be used, constructed, developed, occupied
and maintained in accordance with the laws, ordinances, or
- regulations of the State of Maine and the City of Bangor, as
the same may now or hereafter be in effect. In the event that
both the State and .the City have law(s) governing the same -.
Subject matter, DEVELOPER agrees that the Premises and any
improvements which may be or may become located thereon shall
be governed by the, most restrictive of these law(S). The
Page 13 of 24
DEVELOPER further agrees that any structure, or the occupancy
thereof, constructed on the Premises shall not unreasonably
interfere in any way with the operation, maintenance, repair or
replacement of all existing sewer lines on the Premises which
are depicted on the survey to be furnished by CITY to DEVELOPER
under Section II.A.9 above. In addition to other requirements
herein, the DEVELOPER shall not construct any structure on the
Premises without receiving prior written certification by the
City Engineer that said structure shall not unreasonably
interfere with said sewer lines.
3. Anti -discrimination. The DEVELOPER agrees for itself, and
very successor in interest to the Premises, or any part
thereof, and the Deed shall contain express covenants on the
part o£ -the DEVELOPER for itself, and its successors and
signs, that the DEVELOPER, and its successors and assigns,
shall not discriminate upon the basis of race, color, creed,
national origin, ag< sex, physical or mental handicap or on
any other basis prohibited by law now or in the future, in the
sale, lease, or rental, or use or occupancy of the Premises or
any improvements thereon.This covenant shall run in
perpetuity. This covenant against discrimination shall be
binding for the benefit and in favor of, and enforceable by the
CITY and the United States of America against the DEVELOPER and
very successor in interest to the Premises or any part
thereof.
4. Pronarty Taxan/I f T A The DEVELOPERagrees
for itself, and every Successor
in
interest to the Premises, or
any part thereof, and Deed shall contain express covenants o
the part of the DEVELOPER for itself, and its successors and
signs, that in the event the Premises or any portion thereof
Shall be transferred to or operated by a tax-exempt entity such
that the Premises of any portion thereof shall no longer be
subject to such real estate or personal property taxes as may
be otherwise imposed by the CITY in its governmental capacity
upon the Premises or any portion thereof, the DEVELOPER or such
successor in interest shall enter into an in -lieu of tax
agreement with the CITY. I -
Such agreement shall require the DEVELOPER or Such Successor is
interest, to establish a scholarship fund to be used to defray
- the costs and expenses of deserving City of Hangor residents
who wish to attend the Maine School for the Arts/Maine High
School for the Arcs. On a n
annual basis, a m of 2V of
the gross receipts derived from any tax-exempt activity taking
place within the Premises shall be provided to the City of
-
Bangor to be held in trust for this purpose. Said receipts
- shall be -paid to the CITY no later than sixty (60) days after
the close of the fiscal year of the tax exempt entity(ies)
DEVELOPER shall cooperate with CITY in establishing the
- -- appropriate trust documents and the procedures governing the
-- - - - disbursement of these funds.
Page 14 of 24
Should the Maine School for the Arta/Maine High School for the
Arcs cease to function or transfer all or any portion of the
Premises for any reason, the in -lieu of tax payments shaft on
account of any taxexempt use of the Premises shall be made in
ash to the CITY'S General Fund. In such event, the amount of
_.. .. such in -lieu of tax payments shall equal fifty percent (50k) of
the amount that would otherwise be assessed as property taxes
in the Premises or exempt portion thereof, including all
mprovements thereto and personal property located thereon,
were the Premises and such improvements and personal property
fully taxable; minus any amount paid by the tax exempt
organization to the City of Bangor on account of the Premises
as a service fee under 36 MRSA 651(a)(1) or other provision of
law, as now in force or hereafter amended.
5. Subdivision Rcetrirtion. The DEVELOPER agrees for itself, and
very successor
in
interest to the Premises, O any part
thereof, and the Deed shall contain express covenants on the
part of the DEVELOPER for itself, and its successors and
assigns, that the Premises shall not be subdivided without the
CITY 'a express written consent, which consent shall not be
reasonably withheld. For the purpose of this paragraphs the
following alone shall not be deemed to constitute a -
subdivision: "-
a. Development of the project as a condominium pursuant to
the Maine Condominium Act (33 M.R.S.A. Sec. 1601-101 at
seg.).
b. Leases of portions of the Premises.
C. Construction of separate buildings or structures on the
Premises.
d. Sale of conveyance of all or a portion of the Premises to
a corporation to be organized, under the name "Maine
School for the Arts/Maine High School for the Arts", for
the purpose of operating high school for the arts and arts
conservatory as contemplated by this Agreement.
6. Land Speculation Restriction. The DEVELOPER represents and
agrees that its purchase of the Premises and its other
undertakings pursuant to this Option Agreement are and will be
used for the purpose of development of the Premises in
accordance with Section II.A.1 above, and not for speculation
in land holdings. This covenant shall terminate upon the
CITY'S issuance of the Certificate of Completion under Section
II.C.12 below. .
7. The DEVELOPER
cognizes that the qualifications and identity of the
DEVELOPER, and its principals Or any successors in interest,
Page 15 of 24
are of particular concern to the CITY. The DEVELOPER further
recognizes that it isbecauseof such qualifications and
identity that the CITY is entering into this. Option Agreement
and is willing to accept and rely on the obligations of the
DEVELOPER for the faithful performance of all undertakings and
covenants to be performed by the DEVELOPER.
Therefore, the DEVELOPER represents and agrees for itself, its
successors and assigns, that, except only by way of security
for the purpose of obtaining financing necessary to enable the
DEVELOPER or any approved e n interest to perform the
obligations under Section IICDehereof, the DEVELOPER has not
made or created and, until the CITY issues the Certificate of
Completion under Section iI.C.12 below, will not make or
sate, or suffer to be made or created, any total or partial
sale,asignment, conveyance, lease, trust, power, or transfer
in any other mode or form, of, or with respect to, this Option
Agreement, the Premises, or any part thereof, or interest
therein, nor shall any contract or agreement to do any of the
same be entered into without the CITY's prior written approval.
The foregoing provisions shall not apply to the lease of the
premises or the improvements to be constructed thereon to
prospective tenants, provided that said leases are made subject
to the provisions of this Agreement.
The CITY shall be entitled to require as conditions to any such
approval that;
a. Any proposed transferee shall have the qualifications and
financial responsibility, determined by the CITY by
written evidence submitted to it, to be necessary and
adequate to fulfill the obligations undertaken under
Section II.B hereof;
b. Any proposed transferee, by instrument in writing
satisfactory to the CITY and in a form recordable in the
Penobscot Registry of Deeds, shall for itself and its
successors and assigns, and expressly for the benefit of
the CITY, have expressly assumed all of the obligations of
the DEVELOPERunderthis Option Agreement and agrees to be
subject to all of the conditions and restrictions to which
the DEVELOPER is subject under Section II.0 hereof; and
C. The consideration payable for the transfer by the
transferee or on its behalf shall not exceed an amount
representing the actual cost to the DEVELOPER of the
Premises and the improvements, if any, theretofore made
thereon by it; the intent of this provision being to
preclude assignment of the agreement, or transfer of the
Premises, for profit prior to the CITY's issuance of the
Certificate of Completion under Section II.C12c and to
provide that if any such assignment or transfer is made
the CITY shall be entitled to increase the purchase price
Page 16 of 24
to the DEVELOPER by the amount that the consideration
payable for the assignment or transfer is in excess of the
.amount that may be authorized pursuant to this
-" subparagraph c. and such consideration shall, to the
extent that it is in excess of the amount so authorized,
belong and forthwith be paid to the CITY. _
All covenants contained in this Section II.C.V shall terminate
upon the CITY's issuance of the Certificate of Completion under '-
section II. C.12 below and upon completion £ five full years of -
operation of the Maine School for the Arts/Maine High School
for the Arts.
er: t. gas�Soc—F1 f
a. Prior to the completion of the improvements as certified
by the CITY, neither the DEVEWPER nor any successor in
interest to the Premises or any part thereof shall engage
n any financing or any other transaction creating any
mortgage or any other encumbrance or lien upon the
Premises, whether by express agreement or operation of
law, or permit any encumbrance of lien to be made gn or
. attached to the. Premises, except for the purpose of _
obtaining funds necessaryfor making improvements provided
herein. The DEVELOPER shall notify the CITY in advance of _
any mortgage financing it proposes to enter into with
respect to the Premises, and of any encumbrance or lien
that has been created on or attached to the Premises, _
whether by voluntary act of the DEVELOPER or otherwise.
b. The holder of any mortgage authorized by this Option
Agreement, including any such holder who obtains title to
the Premises or any part thereof as a result of
foreclosure proceedings or action in lieu thereof, shall
not be obligated by the provisions of this option_
Agreement to construct or complete the improvements or to
. guarantee such construction or completion. No covenant or
any other provision in any deed shall be construed so to
obligate any such holder. However, 'neither such holder
r its successors or assigns shall be authorized to
devote the Premises or any part thereof to any uses, or to
construct any improvements thereon, other than those uses
or improvements provided or authorized in this option
Agreement. "
-
All covenants contained in this Section II.C.8 shall terminate
upon the CITY's issuance of the Certificate of Completion under
section II.0-12 below and upon completion of five full years of
operation of the Maine School for the Arts/Maine High School
for the Arts. "
Page 17 of 24
a. Whenever the CITY shall deliver or make any notice or
demand to the DEVELOPER with respect to any breach or
default by the DEVELOPER in its obligations or covenants
under this Option Agreement, the CITY shall at the same
time deliver to each holder of record of any mortgage
authorized by this agreement a copy of such _notice o
demand. Each such holder shall, r scfar as the rights of
the CITY are concerned, have the right at its option to
cure
such breach or default and to add the cost thereof to
the mortgage debt and the lien of its mortgage. However,
if the breach or default is with respect to.construction
. _ of the improvements such holder may not undertake or
continue the construction or completion of the
improvements beyond the extent necessary to conserve
protect improvements or construction already made without
first having expressly assumed in writing the obligations
to the CITY to complete, in the m r provided in this
option Agreement, the improvements on the. Premises or the
part thereof to which the lien or title of such holder
relates, and having submitted evidence satisfactory to the
CITY that it has the qualifications and financial
responsibility necessary to perform such obligation. Any
such holder who shall properly complete the improvements
relating to the Premises or applicable part thereof shall
be entitled, upon written request made to the CITY, to a
certification by the CITY to such effete in a manner
provided in Section II.C.12 of this Agreement. Such
certification shall, if so requested by such holder,
provide that any remedy of the CITY's with respect to
reverting of title to the Premises because of failure of
the DEVELOPER to cure any default with respect to the
construction of the improvements on other parts of parcels
of the Premises, or because of any other default in or
breach of this Agreement by the DEVELOPER, shall not apply
.to the part or parcel of the Premises to which such
certification relates.
b. If after the DEVELOPER's default under this Agreement, the
holder of any mortgage on the Premises or part thereof
does not exercise the option to construct or complete the
improvements relating to the Premises or part thereof
covered by its mortgage or t0 which ithas obtained title
within 60 days after the holder has been notified of the
default or undertakes completion of the improvements but
does not complete construction within theperiod as agreed
upon by the CITY and such holder,- the CITY shall have the
option of paying to the holder the amount of the mortgage
debt and securing an assignment of such debt and of the
mortgage. If ownership of the Premises or part thereof
has vested in such holder by way of foreclosure or action
in lieu thereof, the CITY shall be entitled, at its
Page 18 of 24
option, to a conveyance to it of the Premises or part
- thereof upon payment to such holder of an amount equal to
the sum
of the mortgage debt at the time of foreclosure or
action in lieu thereof less all appropriate credits,
_including those resulting from collection and application
of rentals received during foreclosure proceedings; all
expenses with respect to the foreclosure; the net
expenses, exclusive of general overhead, incurred by such
holder in and as a direct result of the subsequent
management of the Premises; the cost of any improvements
made by such holder; and an amount equivalent to the
interest that would have accrued on the aggregate of such
-amounts had all such amounts become part of the mortgage
debt and such debt had continued in existence until such
acquisition by the CITY.
C. In the event of the DEVELOPER's default in its obligations
under any mortgage or other instrument creating an
cumbrance upon the Premises or part thereof prior to
completion of improvements, the CITY may at its option
cure such default or breach. In such case the CITY shall
be entitled, in addition to and without limitation upon
any other remedy to which it shall be entitled by this
Option Agreement, operation of law, or otherwise, to:
reimbursement from the DEVELOPER or successor in interest
of all costs and expenses incurred by the CITY in curing
such default or breach, and tora lien upon the Premises or
part thereof to which the mortgage, encumbrance, or lien
relates, to Secure such reimbursement.
d. For the purposes of this and other Paragraphs of this
Option Agreement, the term "holder" in reference to a
mortgage shall be deemed to include any insurer or
guarantor of any obligation or condition secured by such
mortgage, including but not limited to the Federal Housing
Commissioner, the Administrator of Veterans Affairs, and
- any successor in office of.either such official..
All covenants contained in this II.C.9 shall terminate upon the
CITY's issuance of the Certificate of Completion under Section
II.C.12 below.
10. Title Reversion Prior to QOmnletiOn. In the event that prior
to the CITY's issuance of the Certificate of Completion under
Section C.12. below -
a. The DEVELOPER, or its successor in interest or assign,
shall default in or violate its obligations with respect
to the construction of the improvements (including the
nature and the dates for the beginning and completion
.thereof), or shall abandon or substantially suspend
construction work, and any such default, violation,
abandonment, or suspension is not cured, ended, or
Page 19 of 24.
remedied within three (3) months (or six (6) months, if
the default is with respect to the date for completion of
the improvements) after written demand by the CITY to do
- - so; or -
b. The DEVELOPER, or its successor in interest or assign,
shall fail to pay real estate taxes or assessments on the
Premises or any part thereof when due, or shall place
thereon any encumbrance or lien unauthorized by Section
II.0 hereof, or shall suffer any levy or attachment to be
made, or any materialmen's or mechanic's lien, or any
other unauthorized ancumbrance or lien to attach, and such
taxes or assessments shall not have been paid, or the
encumbrance or lien removed or discharged or provision
made, satisfactory to the CITY, for such payment, removal,
r discharge, within thirty (30) days after the CITYms
written demand to do so; or
C. The DEVELOPER, or its successor in interest or assign,
shall make any assignment for the benefit of creditors, or
receiver r similar officer shall be appointed to take
chargeof all or any substantial part of the DEVELOPER's
property, and such assignment or appointment is not
dismissed or released within thirty (30) days of the date
the assignment or appointment is made; or
d. There is, inviolation of Section II.0 hereof, any
transfer of the Premises or any part thereof, or any
change i ownership of the DEVELOPER, except as expressly
permitted nSection II.C.] above, and such violation
shall not be cured within thirty (30) days after written
demand by the CITY to the DEVELOPER'
then the CITY shall have the right to re-enter and take
possession of the Premises and to terminate and rev
est in the
CITY the entire estate conveyed by the Deed to the DEVELOPER as
if no Deed had ever been given; it being the intent of this
provision, together with other provisions of Section C. hereof,
that the conveyance of the Premises to the DEVELOPER shall be
made upon, and that the Deed shall contain, a condition
subsequent to the effect that in the event of any default,
failure, violation, o other action or inaction by the
DEVELOPER specified in subparagraphs a., b., c and d. of
Section II.c.10 hereof, and failure on the part of the
DEVELOPER to remedy, end, or abrogate such default, failure,
violation, or other action or inaction, within the period and
n the usurer stated in such subparagraphs, the CITY at its
option may declare a termination in favor of the CITY of the
title, and of all the rights and interest in and to the
Premises, and that such title and all rights and interest of
the DEVELOPER, and any assigns or successors in interest to and
n the Premises shall revert to the CITY; provided, however,
that such condition subsequent and reverting of title in the
Page 20 of 24
CITY shall always be subject to and limited by, and shall not
defeat, render invalid or limit in any way: (1) the lien of
any mortgage authorized by Section II.0 hereof, and (2) any
rights or interests provided in Section II.0 for the protection
of the holders of such mortgages.
The CITY shall have the right to institute such actions or
proceedings as it may deem desirable for effectuating the
purposes of this Section II.C.10 including also the right to
execute and record or file among the public land records in the
office in which the Deed is recorded a written declaration of
the termination of all the right, title and interest of the
DEVELOPER, its successors in interest and assigns, in the
Premises and the reverting of title in the CITY; provided,
however, that any delay by the CITY in instituting or
prosecuting any such actions or proceedings or otherwise
asserting its rightsunderSection II.0 hereof shall not
operate as
awaiver of such rights or to deprive it of or limit
such rights in any way.
The express conditions, covenants, and restrictions contained
n this Section II.C.10 shall terminate upon the CITY's
issuance of the Certificate of Completion under Section II;C12
below.
11.
Disposition noon Peve,gion.
Upon the reverting in the CITY of
title to the Premises or any part thereof as provided in
Section II.C.10, the CITY shall in accordance with State law
use its best efforts to resell the Premises or part thereof,
subject to any existing mortgage liens, as soon and in such
manner as the CITY shall find feasible and consistent with the
objectives of developing the Premises to a qualified and
responsible party or parties, as determined by the CITY, who
will assume the obligation cf.making or completing the
improvements or such other improvements in their stead as'shall
be satisfactory to the CITY.
Upon the resale of the Premises, the proceeds thereof shall be
applied: _
a. Pirst, to reimburse the CITY for: all costs and expenses
incurred by the CITY including but not limited to salaries
of personnel in connection with the recapture, management,
and resale of the Premises or part thereof (but less any
income derived by the CITY from the Premises or part
thereof); all taxes, assessments, water, sewer and other
utility charges with respect to the Premises or part
thereof; any payments made or necessary to be made to
discharge any encumbrances or liens existing on the
Premises or part thereof at the time of reverting of title
thereto in the CITY or to discharge or prevent from
attaching or being made any subsequent encumbrances or
- .liens due to obligations, defaults, or acts of the
Page 21 of N
DEVELOPER, its snCCE690ra Or assigns; any expenditures
made or obligations incurred with respect to the making or
completion of the improvements or any part thereof on the
Premises or part thereof; and any amounts otherwise owing
to the CITY by the DEVELOPER and its successor or assign;
and
b. Second, to reimburse the DEVELOPER, its successors
s or
assigns, up to theamount equal to; (1) the s sum the
purchase price paid by it for the Premises or part thereof
and the cash actually invested by it in making any of the
improvements on the Premises or part thereof; less (2) any
gains or income withdrawn or made by it.
The CITY shall retain as its property any balance remaining
after such reimbursement.
The express conditions, covenants, and restrictions contained
n this Section II.C.11 shall terminate upon the CITY's
issuance of the Certificate of Completion under Section II.C.12'
below.
12. cerH ficam of Comolation. Promptly after completion of the
improvements inaccordance with the provisions of this Option
Agreement, the CITY will furnish the DEVELOPER with an
appropriate instrument so certifying, which instrument shall
not be unreasonably withheld. Such certification shall be in
such form as will enable it to be recorded in the Penobscot
County Registry of Deeds. The CITY's issuance
ofthe
Certificate of Completion will constitute conclusive proof of
the satisfaction and termination of the express conditions,
Covenants, and restrictions Contained in Sections II.C.6,
II.C.9, II.CE, II.C.9, II.C.lo, and II.C.11 above.
If the CITY shall refuse or fail to provide such certification,
the CITY shall, within thirty (30) days after written request
by the DEVELOPER, provide the DEVEIOPER with a written
statement indicating in adequate detail in what respects the
DEVELOPER has failed to complete the improvements in
accordance
with the provisions of this Option Agreement and what measures
will be necessary to obtain such certification.
L2EiQr Agreement sunproeded, This Agreement
replaces the parties, trims "Tentative
LuKeement for Purchase of a RQrtion of the Former
Ruilding" dated December 2B. 1225, as previQualy amended an
extended
33$. Severability. If any provision of this Option Agreement i
determined to be invalid or unenforceable under law, it shall
Page 22 of 24
not affect the validity or enforcement of the remaining
obligations or portions hereof.
343.*Notices. Any notice under this Option Agreement by either
party to the other shall be sufficiently given or delivered if
it is dispatched by registered or
certified mail, postage
prepaid, return receipt requested, or delivered personally, and
a. in the case of the DEVELOPER,saddressed to or delivered
personally to the DEVELOPER, 96 Harlow Street, Suite 9,
Bangor, ME 04401;
b. in the case
of the CITY, is addressed to or delivered
personally to the CITY, c/o City Manager, City Hall, 73
Harlow Street, Bangor, Maine 04401;
or to such other persons or addresses as the parties may
designate in writing to the other.
i5$. Memorandum of Ootion.. This Agreement shall not hw a
r nrdad.
Upon request of either, the parties agree to prepare and
execute a Memorandum of Option in recordable form, which
Memorandum may be recorded by either party in the Penobscot
County Registry of Deeds.
iAuthority to Execute By their signatures
below, the off icars
t they are
been taken to approve this Agreement on the cart of the CIT
and the DEVELOPER respectively.
IN WITNESS WHEREOF, the parties hereto have oda caused
theirthis Agreement to be executed by underajoned City Manager
piaci dear r a - t; valy on the day and year first written above.
CITY OF BANGOR
By
Edward A. Barrett
Its City Manager
NORTHERN CONSERVATORY OF MUSIC
By
Witness Daryl Rhodes
Its President
Page 23 of 24
STATE OF MAINE
Penobscot, as
m,
Then personally appeared the above-named Edward A. Barrett, in his
capacity as the City Manager of the City of Bangor, and acknowledged the
foregoing instrument to be his free act and deed in such capacity and the
free act and deed of the City of Bangor.
Before me,
Printed Names
Notary Public/Attorney at Law
STATE OF MAINE
Penobscot, as. , 1996
Then personally appeared the above-named Daryl Rhodes, in his
capacity as President of Northern Conservatory of Music and acknowledged
the foregoing instrument to be his free act and deed in such capacity and
the free act and deed of the Corporation.
Before me,
Printed Name:
Notary Public/Attorney at Law
Page 24 of 24